Sexual orientation and sexual behaviour: can they be distinguished?

Should the employee of a religious organisation be allowed to be dismissed because of her sexual activities outside work? A recent Australian decision suggests, somewhat surprisingly, that she may be. I will explain here why I believe the court was correct. In Bunning v Centacare[2015] FCCA 280 (11 February 2015) an employee of a Catholic family counselling centre was dismissed because of her involvement in support for “polyamorous” activities. She claimed to have been discriminated against on the basis of her sexual orientation, but the claim was dismissed.

Distinguishing between orientation and behaviour- previous cases

By way of background, one of the most difficult issues in the interaction between religious freedom and sexual orientation anti-discrimination law arises when a believer makes a decision which is based on a person’s sexual activity, and it is claimed that in fact the decision was based on sexual “orientation”. This dilemma arises because, unlike most other prohibited grounds of discrimination, “sexual orientation” discrimination involves serious ethical dilemmas for those who adhere to traditional religious beliefs on sexual morality. That is, long-standing religious views (not only in Christianity but also in Islam and Judaism, for example) teach that same sex sexual behaviour is actually wrong, and contrary to God’s purposes for humanity. But one of the defining characteristics of a person who is of a homosexual “orientation” is a preference (to use a possibly controversial word) for sexual activity with a person of the same sex.

Sometimes believers, when challenged that their decisions are based on sexual orientation, have attempted to argue that in fact those decisions are based on sexual behaviour. That is, the claim is made that there is no intention to investigate someone’s personal preferences or “inclination”; but that engaging in what the religion regards as immoral behaviour, homosexual intercourse, can be a legitimate reason for making a distinction of some sort. An argument of this sort was run in the UK decision in Bull & Bull v Hall & Preddy [2013] UKSC 73 (27 November 2013). There the Christian owners of a boarding house had enforced for some years a rule that they would not let a double-bed room to any couple who were not married. A same sex couple were turned away from the room on this basis and sued for sexual orientation discrimination. The UK Supreme Court upheld the award of damages against the Bulls. In particular, they commented at one point as to whether it made a difference that it was the “status of marriage” which was the criterion for the decision, or not. (At the time same sex couples could not marry each other in the UK.) The majority of the court held that this did not make a difference. In particular, Lady Hale commented in this way on the argument that one could distinguish a decision made on the basis of sexual behaviour, from one made on the basis of orientation:

[52] Sexual orientation is a core component of a person’s identity which requires fulfilment through relationships with others of the same orientation. As Justice Sachs of the South African Constitutional Court movingly put it in National Coalition for Gay and Lesbian EqualityvMinister of Justice, 1999 (1) SA 6, para 117:

“While recognising the unique worth of each person, the Constitution does not presuppose that a holder of rights is an isolated, lonely and abstract figure possessing a disembodied and socially disconnected self. It acknowledges that people live in their bodies, their communities, their cultures, their places and their times. The expression of sexuality requires a partner, real or imagined.”

This view, that sexual orientation requires expression in intercourse, and hence that any distinction based on the behaviour will also be a distinction based on orientation, was also affirmed in a recent Australian decision, Christian Youth Camps Limited v Cobaw Community Health Service Limited and Mark Rowe [2014] VSCA 75 (16 April 2014) (for detailed comment on this case see my previous post and linked articles.) The Court there rejected an argument that in denying a booking to a group that was lobbying for the “normalisation” of homosexuality, the Christian group concerned was not basing its decision on the orientation of the group members, but (impliedly) on their “behaviour” of lobbying for a particular viewpoint. Maxwell P supported comments that had been made by the Tribunal below, which were to the effect that sexual orientation is “part of a person’s being or identity” and that:

To distinguish between an aspect of a person’s identity, and conduct which accepts that aspect of identity, or encourages people to see that part of identity as normal, or part of the natural and healthy range of human identities, is to deny the right to enjoyment and acceptance of identity. (at [57])

Against this background, it is very interesting to find this recent decision that clearly distinguishes between “orientation” and “behaviour”, and finds against a dismissed claimant on these grounds.

Bunning v Centacare

In the Bunning case, Ms Bunning worked in a Catholic family counselling centre in a senior position. (While operating under the “brand” of “Centacare”, the Respondent’s full name from the case documents was “THE CORPORATION OF THE TRUSTEE OF THE ROMAN CATHOLIC ARCHDIOCESE OF BRISBANE TRADING AS CENTACARE”, and hence it was clear that Centacare was a direct emanation of the Church.)

The Applicant’s own documents revealed the following (see [7]):

her contact details as a counsellor at Centacare [had been] published on a website for the Brisbane Poly Group. These details had been originally published in or around late 2011, or early 2012, following a request from the group for the contact details of a ‘poly-friendly’ counsellor. The Brisbane Poly Group is a group of people involved and/or interested in the polyamorous lifestyle.

The website details had been brought to the attention of her employer, and on this basis her employment was terminated. Para [11] describes the events in the Applicant’s words:

(e) Furthermore, during the meeting the Applicant was told that the ‘Brisbane Poly Group’ goes against the ethics and moral teachings of the Catholic Church and that such a lifestyle would be in conflict with those teachings.

(f) The Applicant was told that she was to be dismissed instantly for gross misconduct.

The claim under the Sex Discrimination Act 1984 (Cth) (“SDA”) was that the Applicant had been dismissed, or else put at a disadvantage, on the basis of her “sexual orientation”, and hence there had been a breach of the Act, s 14. Judge Vasta had to determine whether “being polyamorous” was a relevant sexual orientation. His Honour concluded that it was not. He referred to the Macquarie Dictionary definition of “polyamory” as

“The mating pattern of having a number of sexual partners at the same time” – [41] (emphasis in original)

As such the term referred to a certain type of behaviour. But, his Honour said, the word “orientation” as a “state of being” rather than actual behaviour:

[29] Under the Act, sexual orientation is how one is, rather than how one manifests that state of being. The manifestation of that state of being can take many forms. Those forms are what we know as “sexual behaviour”.

He concluded that the Applicant had shown that she adopted polyamorous behaviour, but had not demonstrated that this was a relevant orientation. In a very interesting passage worth quoting at length, he continued:

[33] In argument before me, the Applicant contends that “behaviour” is a “sub-set” of an orientation and therefore is covered by the definition in the Sex Discrimination Act 1984.

[34] If the contention of the Applicant were correct, many people whose sexual activity might label them as sado-masochists, coprophiliacs or urophiliacs could claim that such is more than mere behaviour; it is in fact their very sexual orientation. If the contention were correct, then the illegal activities of paedophilia and necrophilia may have the protection of the Sex Discrimination Act 1984(Cth). Such a result would be an absurdity.

[35] This is because sexual orientation is something far more than how one behaves sexually. Many religious persons take a vow of chastity and do not behave sexually at all. Yet they still can have a sexual orientation under the definition in the Sex Discrimination Act 1984. This is because their behaviour does not define their orientation.

Having noted that as a matter of legislative history, Parliament had declined to include “lawful sexual behaviour” as an alternative ground of discrimination, his Honour concluded:

[39]…I am led to the inexorable conclusion that “sexual orientation”, as the term is used in s. 4 of the Sex Discrimination Act 1984 (Cth), covers only that which it expressly covers, i.e., the state of being. It does not cover behaviours.

Hence the claim for sexual orientation discrimination failed, as the Applicant had not shown that the basis of the decision was a “condition” or “state of being” recognised under the SDA as a prohibited ground.

Comments

The decision in this case is interesting, as previously noted, because it seems to run counter to a tendency in other decisions to treat “orientation” and “behaviour” as interchangeable. It has to be said, however, that the implications of the decision are unclear. The Federal Circuit Court is a successor to the court that was previously called the “Federal Magistrates’ Court”. It is not high up in the Australian court hierarchy, and indeed it seems likely that formally its decisions do not form a precedent for any other courts. The decision here could of course go on appeal to the Federal Court “proper”.

In addition, neither of the judgments noted above, Bull and CYC v Cobaw, seem to have been cited to Judge Vasta. However, it should be noted that the case did not concern the question of “homosexual” orientation, and hence did not directly engage the issues which led to the previous comments. Polyamory, of course, as a formal “lifestyle” (as Judge Vasta noted, the term used by the Applicant herself) is not commonly spoken of as an “orientation”. A claim for discrimination on this basis feels more like a claim for discrimination on the basis of “marital status”, which does indeed focus on behaviour. The definition of “marital status” in s 4(1) of the SDA assumes that there is only one other party to the relationship- see e.g. para (e) “the de facto partner of another person” (emphasis added). Presumably if Parliament had intended to protect persons in multiple relationships, it could easily have referred to “person or persons”.

On balance, it seems that his Honour’s decision is correct. Whether the broadly expressed comments about the difference between “orientation” and “behaviour” will be adopted in later proceedings is more doubtful, but it is to be hoped that they are given due weight. Christians, to take one example, are well used to distinguishing between a “propensity” to behave in a certain way, and the actual behaviour. The Bible teaches that all people are by nature inclined to sinful behaviour, but sees nothing inconsistent in urging people at the same time to resist the temptation to do so. In other areas of life even modern Western society recognises the fact that someone may be, for example, an alcoholic, and regularly tempted to drink to access, but can commend and encourage that person not to act on their impulses and to resist the temptation. Whether this situation is analogous to the orientation of a person to have sex with others of the same sex is a matter of great debate. But it does not seem unreasonable that religious believers ought to be able to make the case that there is a difference between the two concepts of propensity and activity, and to argue that in some cases there is a valid distinction to be made between them.

Finally, it should be noted that even if the Applicant had been able to establish a prima facie case of sex discrimination, it seems possible that the Church would have had a defence under s 37(1)(d) SDA, which says that the earlier provisions prohibiting sex discrimination do not apply to:

any other act or practice of a body established for religious purposes, being an act or practice that conforms to the doctrines, tenets or beliefs of that religion or is necessary to avoid injury to the religious susceptibilities of adherents of that religion.

Clearly the practice of having multiple sexual partners at the same time (which of course would mean at least one of them was not married to the Applicant) would run contrary to the moral teaching of the Roman Catholic Church. Since the role of Centacare was to counsel on family relationships, presumably the counselling was designed to be given in accordance with those moral teachings, and it would be a fundamental contradiction of those teachings for the church to employ a counsellor whose lifestyle was a living repudiation of those teachings. No doubt, in addition, many members of the Catholic Church would be offended by a person in this situation purporting to deliver counsel on behalf of the Church. On this basis it seems fairly clear that s 37 would have been engaged and entitled the Church to dismiss the Applicant, even if there had been “sexual orientation discrimination”.

However, as clear as this may seem, it has to be said that there is now some doubt about the application of s 37 since the earlier-mentioned decision in CYC v Cobaw, where it was queried whether a religious organisation’s views on sexual behaviour could be said to be part of their fundamental “beliefs” or “doctrines”. As discussed in my previous notes on the case, however, I take the view that the decision of the NSW Court of Appeal on this issue in OV & OW v MEMBERS OF THE BOARD OF THE WESLEY MISSION COUNCIL [2010] NSWCA 155 is binding on lower courts (as an earlier decision on the point by an appellate court) and should be followed on this issue. Christian doctrines on marriage and sexual behaviour have been a fundamental part of the Church’s teaching from the earliest days and were clearly intended by Parliament to be relevant in these contexts.